ICE

Only two weeks into the implementation of the deferred action program and amidst a spate of anti-immigrant attacks against it, a group of immigration officers has filed a lawsuit challenging the policy as unconstitutional.

The plaintiffs in Crane v. Napolitano are Immigration and Customs Enforcement agents who claim that the recent directives of the Department of Homeland Security command them to violate federal law and are a usurpation of the legislative power of Congress.

They challenge in particular the June 15, 2012 memo of Sec. Janet Napolitano on deferred action for childhood arrivals and the June 17, 2011 Morton Memorandum establishing enforcement priorities, which they had complained of earlier. The agents say that they are forced to violate their oaths of office and several laws, or be disciplined for doing their job if they follow federal law and disregard the directives.

In effect, they disagree with the President’s policy to deport criminals first before students and individuals who were brought into the U.S. as young children, so much so that they refuse to be bound by the policy and have chosen to bring this difference of opinion to the court.

Many legal observers believe that the lawsuit has no merit and that it would be dismissed on jurisdictional grounds.

The group’s legal costs are shouldered by the anti-immigrant organization NumbersUSA. The agents’ lawyer is Kris Kobach, whose name may sound familiar because he authored the infamous Arizona immigration law SB1070. He also advises GOP presidential candidate Mitt Romney on immigration.

One of the claims made by the employees is that federal law does not authorize deferred action, much less the granting of this benefit to 1.7 million potential beneficiaries.

But deferred action is not new. Widows of U.S. citizens have received deferred action from the USCIS, as do women who have suffered physical and mental abuse because of rape and domestic violence who are applying for a U visa. Foreign students who were affected when Hurricane Katrina hit the U.S. were able to get deferred action. Deferred action is also a form of relief that is available in removal proceedings, whereby the DHS agrees not to deport an alien or not to execute a removal order.

I myself have in the past helped obtain deferred departure status for hundreds of nurses who would otherwise have been deported because they failed their licensure exams or changed employers without authorization. The INS agreed to give them deferred departure status for a maximum of 3 years. Many of these nurses eventually regained lawful status.

This present lawsuit is just the latest onslaught against the program that grants reprieve from deportation to deserving individuals who are in the U.S. through no fault of their own. On the same day that the USCIS began accepting deferred action requests, the governor of Arizona issued an executive order denying state benefits, including driver’s licenses, from deferred action beneficiaries. Nebraska’s governor quickly followed suit and announced that his state would also deny driver’s licenses, welfare benefits and other public assistance to DREAMErs.

Elsewhere, there are reasons for DREAMers to remain optimistic. In New York, for instance, a lawmaker has introduced a bill that would give undocumented youth access to government financial aid for college. A Colorado university has started to charge a reduced tuition fee for eligible undocumented students. A federal court also recently blocked key parts of immigration laws of Alabama and Georgia.

When the Immigration and Customs Enforcement (ICE) in a memo last June instructed its personnel to avoid the deportation of “low priority” or non-criminal aliens, immigration advocates and immigrant communities all over the country welcomed it as a humane and sensible approach to immigration enforcement.

The Morton Memorandum, named after ICE Director John Morton, ordered its personnel to exercise “prosecutorial discretion” when handling cases of aliens who have no criminal history and are not risks to national security or public safety. It called on them to regularly exercise their discretion at any time during the immigration process in order to prioritize the use of the agency’s limited resources.

The memo listed at least 19 factors to be considered by ICE personnel when making enforcement decisions. These include lengthy residence in the U.S., pursuit of U.S. education, community ties, and having a U.S. citizen (USC) or lawful permanent resident (LPR) relative.

However, ICE offices apparently have not been following the memo in the past five months since it came into effect.

A survey of immigration practitioners by the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) shows that implementation of the new policy has been sporadic at best.

For instance, in New York, removal proceedings were terminated for an alien who had been present since childhood and educated in the U.S. and had strong family and community ties.

On the other hand, relief was denied to a long-time LPR who had two misdemeanors from a long time ago but whose case involved many positive factors, including being a victim of domestic violence or serious crime, having a spouse with a severe illness, and being a primary caretaker of a sick or disabled minor relative.

In California, surveyed attorneys reported little to no change in practice since June. In one case involving an LPR with an abandonment charge, termination of removal proceedings was denied in spite of the equities of the case. The LPR had no criminal history or only minor offenses and had a USC/LPR relative; no negative factors were present.

Many ICE officers and attorneys were reported as having said that there is no change in policy or that things were “business as usual” until they get further guidance. For example, in the Honolulu ICE office, it was said that prosecutorial discretion is denied unless there are life threatening circumstances.

The findings also reveal that the standards are sometimes applied inconsistently or interpreted narrowly. In Florida, for example, an ICE attorney said that a prosecutorial discretion request would be considered at the beginning of the case and not at any other stage of the proceedings. An ICE agent in Seattle reportedly said that discretion to release an alien would be exercised only when a detention center is full.

Despite the clarity of the guidelines in the memo, there is evidently a gap between the leadership that issued the policy and the rank and file tasked to carry out the policy in practice. The AILA and AIC pressed the DHS and ICE in particular to issue additional guidance and hands-on training to its personnel.

In order to give effect to a policy not only approved at the executive level but in fact supported by President Obama, ICE agents and attorneys need to understand that it is their obligation to exercise discretion in accordance with the memo.